Strengthening of District Level Healthcare Facilities · 13.17 NABH Accreditation 57 13.18 Health...

Revised Draft Dated 27th April 2017

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Strengthening of District Level

Healthcare Facilities Under Public Private Partnership

DRAFT PPP CONTRACT

Uttarakhand Health & Family Welfare Society


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Contents Recitals 9

ARTICLE 1

1 Definitions and Interpretation 12

1.1 Definitions 12

1.2 Interpretation 12

1.3 Measurements and arithmetic conventions 14

1.4 Priority of clauses and schedules

14

ARTICLE 2

2 Scope of the Project 15

2.1 Scope of the Project

15

ARTICLE 3

3 Grant of Rights 16

3.1 The Grant of Rights 16

3.2 Conditions Precedent to the Appointed Date 16

3.3 Termination upon delay 18

3.4 Term 18

ARTICLE 4

4 General Obligations of the Service Provider 19

4.1 Cost of Performance 19

4.2 Standards of Performance 19

4.3 General Obligations of the Service Provider 19

4.4 Personnel of Service Provider and its Contractors 20

4.5 Obligations relating to Project Agreements 22

4.6 Change in Ownership 23

4.7 Branding of Healthcare Facilities 24

4.8 Website 25

4.9 Coordination of Healthcare Services with other Services 25

4.10 Prohibition of Conflicting Activities

25

ARTICLE 5

5 Obligations of the Authority 27

5.1 Obligations of the Authority

27

ARTICLE 6

6 Representations and Warranties 29

6.1 Representations and warranties of the Service Provider 29

6.2 Representations and warranties of the Authority 31

6.3 Disclosure 31


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ARTICLE 7

7 Disclaimer 32

7.1 Disclaimer

32

ARTICLE 8

8 Performance Security 34

8.1 Submission of Performance Security 34

8.2 Validity of Performance Security 34

8.3 Appropriation of Performance Security

35

ARTICLE 9

9 License Rights 36

9.1 Licence 36

9.2 Possession of the Site and Existing Assets 36

9.3 Access to the Site and Existing Assets 37

9.4 Site to be free from Encumbrances 38

9.5 Protection of Site from encroachments 38

9.6 Access to the Authority and the Independent Expert 38

ARTICLE 10

10 Transitional Arrangements 39

10.1 Obligations of the Parties relating to Transition of

Healthcare Services

39

10.2 Maintenance and Management District Level Facility and

CHCs prior to COD

41

ARTICLE 11

11 Development and Procurement of Healthcare Facilities 42

11.1 Obligations prior to commencement of Development Works 42

11.2 Development Works in respect of the Healthcare Facilities 42

11.3 Commercial Operations Date 43

11.4 Timeline for Completion of the Development Works 43

11.5 Completion Conditions 44

ARTICLE 12

12 Monitoring of Development and Completion 45

12.1 Appointment of Independent Expert 45

12.2 Monitoring of Completion Conditions 46

12.3 Monitoring and Inspection of Development Works 46

12.4 Completion Certificate 47

12.5 Provisional Certificate 47


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ARTICLE 13

13 Operation Period Obligations 50

13.1 O&M obligations of the Service Provider 50

13.2 Liability for Defects in Healthcare Facilities 50

13.3 Waste Management Obligations 51

13.4 Safety Requirements 51

13.5 Procurement of Drugs and Consumables 52

13.6 Scope of Healthcare Services 53

13.7 Responsibility for Provision of Healthcare Services 53

13.8 Access to Healthcare Services 53

13.9 Patient Charter 54

13.10 Standard Treatment Protocols 54

13.11 Prescription of Drugs 54

13.12 Emergency Care 55

13.13 Obligations relating to Medico-Legal Cases 55

13.14 Availability of the Healthcare Facilities and Healthcare

Services

55

13.15 Other Key Performance Indicators 57

13.16 Medical Records 57

13.17 NABH Accreditation 57

13.18 Health Programmes 58

13.19 Implementing the Health Insurance Scheme 58

13.20 Health Promotion Activities 59

13.21 Obligations relating to Relief Work 60

13.22 User Charges 60

13.23 Advertising on the Healthcare Facilities 62

ARTICLE 14

14 Monitoring of Service Provider’s Operation Period Obligations 63

14.1 Management Information System 63

14.2 Monthly Reports 63

14.3 GPS, Biometric and Other Independent Monitoring Devices 64

14.4 Medical Audits 64

14.5 Patient Satisfaction Survey 65

14.6 Compliance Reports 65

14.7 Inspection 66

14.8 Cooperation with the Independent Expert and Authority 66

14.9 Authority’s Obligations in relation to Monitoring 66

14.10 Remedial measures 66

14.11 Patient Committee 67

14.12 Additional Independent Expert 67

14.13 Inspection and Audit by the Bank 67

14.14 Rights and Remedies of the Authority in Relation to Abuse,

Fraud, Medical Malpractice or Prohibited Activity

68


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ARTICLE 15

15 Service Fee 70

15.1 Determination of Service Fee 70

15.2 Payment of Health Insurance Incentive 71

15.3 Billing and Payment 71

15.4 Pre-conditions to Payment 73

15.5 Delayed Payments 73

15.6 Taxes 73

15.7 Set-off

74

ARTICLE 16

16 Change of Scope 75

16.1 Change of Scope 75

16.2 Procedure for Change of Scope 75

16.3 Payment for Change of Scope

76

ARTICLE 17

17 Rights, Title And Risk 77

17.1 Licensee Rights to Site and Existing Assets 77

17.2 Right, Title and Ownership over New Assets 77

17.3 Access rights of the Authority and others 77

17.4 Property taxes 77

17.5 Restriction on sub-letting 78

17.6 Risk of Loss Damage to the Site, Existing Assets or the

Healthcare Facilities

78

17.7 Risk of Loss of Life Injury to Patients or other Patients 78

17.8 Disputes

78

ARTICLE 18

18 Insurance 79

18.1 Insurance during the Term 79

18.2 Notice to the Authority 79

18.3 Evidence of Insurance Cover 80

18.4 Remedy for failure to insure 80

18.5 Waiver of subrogation 80

18.6 Service Provider’s waiver 80

18.7 Application of insurance proceeds

80

ARTICLE 19

19 Force Majeure 81

19.1 Force Majeure 81

19.2 Non-Political Event 81

19.3 Political Event 82


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19.4 Duty to report Force Majeure Event 82

19.5 Mitigation of Force Event 83

19.6 Effect of Force Majeure Event on the Term 83

19.7 Termination Notice for Force Majeure Event 83

19.8 Termination Payment for Force Majeure Event 84

19.9 Dispute resolution 84

19.10 Excuse from performance of obligations 84

19.11 Emergency and Step-in by Authority 84

ARTICLE 20

20 Termination 86

20.1 Termination for Service Provider Default 86

20.2 Termination for Authority Default 88

20.3 Termination Payment 88

20.4 Other rights and obligations of the Authority 89

20.5 Survival of rights

89

ARTICLE 21

21 Divestment of Rights and Interest 91

21.1 Divestment Requirements 91

21.2 Surveys Prior to Expiry 92

21.3 Surveys on Termination 92

21.4 Results of Survey 92

21.5 Transition of Healthcare Services 93

21.6 Vesting Certificate 94

21.7 Divestment costs etc.

94

ARTICLE 22

22 Assignment and Encumbrances 96

22.1 Restrictions on Assignment and Encumbrance by Service

Provider

96

22.2 Permitted Assignment and Encumbrances 96

22.3 Assignment by the Authority 97

22.4 Effect of Assignment Not Permitted 97

ARTICLE 23

23 Change in Law 98

23.1 Increase in costs 98

23.2 Reduction in costs 98

23.3 Restriction on cash compensation

99

ARTICLE 24

24 Liability and Indemnity 100

24.1 General indemnity 100


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24.2 Indemnity by the Service Provider 100

24.3 Notice and contest of claims 101

24.4 Defence of claims 101

24.5 No consequential claims 102

24.6 Survival on Termination

102

ARTICLE 25

25 Dispute Resolution 103

25.1 Notice of Dispute and Manner of Dispute Resolution 103

25.2 Conciliation 103

25.3 Arbitration 103

25.4 Performance Pending Disputes 104

ARTICLE 26

26 Redressal of Patient Grievances 105

26.1 Complaints Register 105

26.2 Redressal of Complaints 105

ARTICLE 27

27 Miscellaneous 106

27.1 Governing law and Jurisdiction 106

27.2 Waiver of immunity 106

27.3 Depreciation 106

27.4 Delayed Payments and Default Interest 106

27.5 Waiver 107

27.6 No Liability for Review 107

27.7 Exclusion of implied warranties etc. 107

27.8 Survival 107

27.9 Entire Agreement 108

27.10 Severability 108

27.11 No partnership 108

27.12 Third Parties 108

27.13 Successors and Assigns 109

27.14 Notices 109

27.15 Language 109

27.16 Counterparts 109

27.17 Rights Cumulative 110

27.18 Costs and Stamp Duty 110

ARTICLE 28

28 Definitions 111

28.1 Definitions


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SCHEDULES

Schedule A Site of the Project -

Schedule B Minimum Healthcare Services, Infrastructure, Personnel

and Equipment Requirements

-

Schedule C Key Performance Indicators -

Schedule D Format of Performance Security -

Schedule E Formats of Completion Certificate and Provisional

Certificate

-

Schedule F Service Quality Standards -

Schedule G Authority Supplies -

Schedule H Reporting Requirements -

Schedule I MIS Information -

Schedule J Patient Satisfaction Form -

Schedule K Service Fee and Payment Procedures -

Schedule L Financial Irregularities, Abuse, Fraud, Medical Malpractices -

Schedule M Vesting certificate -

Schedule N Standard Treatment Protocols -


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PPP CONTRACT

THIS AGREEMENT1 is entered into on this the ……………………… day of.........., 20…..

BETWEEN

1 THE UTTARAKHAND HEALTH AND FAMILY WELFARE SOCIETY

represented by its [Executive Director] and having its principal office at Directorate of

Health, Government of Uttarakhand, Danda Lakhond, P.O. Gujarada, Sahastradhara

Road, Dehradun 248001 (hereinafter referred to as the “Authority” which expression

shall, unless repugnant to the context or meaning thereof, include its administrators,

successors and assigns);

AND

2 [............................], a [company/LLP] incorporated under the provisions of the

[Companies Act/LLP Act], and having its registered office at [●], (hereinafter referred

to as the “Service Provider” which expression shall, unless repugnant to the context

or meaning thereof, include its successors and permitted assigns and substitutes).

WHEREAS:

(A) The Government of Uttarakhand (“GoUK”) has resolved to improve and enhance

health infrastructure facilities, operations and improve access to good quality

healthcare services to the predominantly remote population in the State of Uttarakhand

through the Uttarakhand Health Systems Development Project.

As a component of the Uttarakhand Health Systems Development Project, the GoUK

aims to utilize innovative mechanisms for engaging private healthcare service

providers in meeting the unmet access needs of the state’s population through the

augmentation of an integrated network of primary care, referral services and emergency

care at the district-level.

(B) The Government of India has availed credit from the International Development

Association (the “Bank”) in an amount equivalent to US$ 100,000,000 (“Credit”). A

portion of the proceeds of this Credit is intended to be applied to eligible payments

under this Agreement, it being understood that: (i) payments by the Bank will be made

only at the request of the Authority and upon approval by the Bank; (ii) such payments

will be subject, in all respects, to the terms and conditions of the agreement providing

for the Credit, and (iii) no party other than the Authority shall derive any rights from

the agreement providing for the Credit or have any claim to the Credit proceeds.

(C) The GoUK has nominated the Uttarakhand Health & Family Welfare Society, a society

that is under the administrative control of the GoUK, as the nodal agency for the

implementation of the Uttarakhand Health Systems Development Project. However,

the Site and the Existing Assets at Tehri are currently owned, operated and maintained

by the Directorate of Medical Health & Family Welfare, a technical wing of the Family

Health & Family Welfare Department, GoUK (“DMH&FW”). Therefore, the GoUK

has issued a G.O No. [●] dated [●] 2015 requiring the DMH&FW to: (i) transfer legal

and construction possession of the Site and the Existing Assets to the Authority for

operation and maintenance thereof and provision of Healthcare Services to the Patients,

either directly or through the appointment of the Service Provider; and (ii) provide


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assistance to the Authority in the contract management and monitoring required under

this Agreement.

(D) In order to achieve the aforementioned objectives, GoUK has mandated the Authority

to undertake an International Competitive Bidding (ICB) for selection of the Service

Provider and award of this Agreement for the augmentation, development, operation

and maintenance of integrated Healthcare Facilities (defined later) and provision of

Healthcare Services (defined later) on a pilot PPP basis in Tehri district.

(E) On 27th April 2017, the Authority commenced an international commercial selection

process and invited bids by its Request for Proposal No.

UKHFWS/UKHSDP/PPP/2017-18/11280 dated 27th April 2017 (the “Request for

Proposal” or “RFP”) for short listing of bidders and award of this Agreement for the

augmentation, development, operation and maintenance of:

(i) the District Hospital Boradi located at Boradi, New Tehri described at

Schedule A (the “District Level Facility”);

(ii) 2 (two) community health centres located at Beleswar and Devprayag in Tehri-

Garhwal district described at Schedule A (collectively, the “CHCs”); and

(iii) 3 (three) mobile health vehicles (collectively, the “MHVs”) to be deployed

within Tehri-Garhwal district,

(collectively, the “Healthcare Facilities” and each a “Healthcare Facility”) and for

the provision of Healthcare Services at the Healthcare Facilities, on a PPP basis.

(F) Pursuant to the RFP, the bidders submitted their bids for the award of the Agreement

for the Project. The [selected bidder (the “Selected Bidder”)/consortium comprising

[●],[●] and [●] (collectively, the “Consortium” and each a “Member”) with [●] as its

lead member (the “Lead Member”)] also submitted its bid to the Authority on [●]

2015 (the “Bid”).

(G) Following a process of qualification, evaluation of the qualification bids and evaluation

of the financial bids received, the Authority accepted the Bid of the [Selected

Bidder/Consortium] and issued its Letter of Award No. [●] dated [●] (the “LOA”) to

the [Selected Bidder/Consortium] and requested the [[Consortium] to incorporate a

special purpose vehicle to act as the Service Provider and to cause such special purpose

vehicle]/[the Selected Bidder] to fulfil certain conditions precedent to the execution of

this Agreement and to execute this Agreement within 45 days of the date of issue

thereof. [The Selected Bidder/Consortium has accordingly incorporated the Service

Provider as the special purpose vehicle to exercise its rights and perform its obligations

under this Agreement.]

(H) The [Selected Bidder/Consortium] has represented and warranted in its Bid that it has

the expertise, experience, capability and know-how in providing operation and

maintenance services for health care facilities of the type and nature similar to the

Healthcare Facilities and providing healthcare services to patients similar to the

Healthcare Services.

(I) The Authority acting on behalf of GoUK, now wishes to grant the Service Provider the

exclusive right to operate and maintain the Healthcare Facilities in Tehri district and to

provide the Healthcare Services in accordance with this Agreement. Consequently, the

Parties have agreed to enter into this Agreement and the Service Provider agrees to

augment, develop, operate and maintain the Healthcare Facilities and to provide the


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Healthcare Services at these Healthcare Facilities in accordance with the terms and

subject to the conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the respective covenants and

agreements set forth in this PPP Contract, the receipt and sufficiency of which is hereby

acknowledged, and intending to be legally bound hereby, the Parties agree as follows:


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ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 Definitions

The words and expressions beginning with capital letters and defined in this Agreement

(including those defined in Article 28) shall, unless the context otherwise requires, have

the meaning ascribed thereto herein, and the words and expressions defined in the

Schedules and used therein shall have the meaning ascribed thereto in the Schedules.

1.2 Interpretation

1.2.1 In this Agreement, unless the context otherwise requires:

(a) references to any legislation or any provision thereof shall include amendment

or re-enactment or consolidation of such legislation or any provision thereof

so far as such amendment or re-enactment or consolidation applies or is

capable of applying to any transaction entered into hereunder;

(b) references to laws of Uttarakhand, laws of India or regulation having the force

of law shall include the laws, acts, ordinances, rules, regulations, bye laws or

notifications which have the force of law in the territory of Uttarakhand and

India and as from time to time may be amended, modified, supplemented,

extended or re-enacted;

(c) references to a “person” and words denoting a natural person shall be

construed as a reference to any individual, firm, company, corporation, society,

trust, government, state or agency of a state or any association or partnership

(whether or not having separate legal personality) of two or more of the above

and shall include successors and assigns;

(d) the table of contents, headings or sub-headings in this Agreement are for

convenience of reference only and shall not be used in, and shall not affect, the

construction or interpretation of this Agreement;

(e) the words “include” and “including” are to be construed without limitation

and shall be deemed to be followed by “without limitation” or “but not

limited to” whether or not they are followed by such phrases;

(f) references to “development” include, unless the context otherwise requires,

construction, renovation, refurbishing, augmentation, upgradation, equipping,

installation and other activities incidental thereto, and “develop” shall be

construed accordingly;

(g) any reference to any period of time shall mean a reference to that according to

Indian Standard Time;

(h) any reference to day shall mean a reference to a calendar day;

(i) references to a “business day” shall be construed as a reference to a day (other

than a Sunday) on which banks in Uttarakhand are generally open for business;

(j) any reference to month shall mean a reference to a calendar month as per the

Gregorian calendar;


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(k) any reference to any period commencing “from” a specified day or date and

“till” or “until” a specified day or date shall include both such days or dates;

provided that if the last day of any period computed under this Agreement is

not a business day, then the period shall run until the end of the next business

day;

(l) the words importing singular shall include plural and vice versa;

(m) references to any gender shall include the other and the neutral gender;

(n) “indebtedness” shall be construed so as to include any obligation (whether

incurred as principal or surety) for the payment or repayment of money,

whether present or future, actual or contingent;

(o) references to the “winding-up”, “dissolution”, “insolvency”, or

“reorganisation” of a person shall be construed so as to include any equivalent

or analogous proceedings under the law of the jurisdiction to which such

person belongs or is incorporated or any jurisdiction in which such person

carries on business including the seeking of liquidation, winding-up,

reorganisation, dissolution, arrangement, protection or relief of debtors;

(p) save and except as otherwise provided in this Agreement, any reference, at any

time, to any agreement, deed, instrument, licence or document of any

description shall be construed as reference to that agreement, deed, instrument,

licence or other document as amended, varied, supplemented, modified or

suspended at the time of such reference; provided that this Sub-clause shall not

operate so as to increase liabilities or obligations of the Authority hereunder or

pursuant hereto in any manner whatsoever;

(q) any agreement, consent, approval, authorisation, notice, communication,

information or report required under or pursuant to this Agreement from or by

any Party or the Independent Expert shall be valid and effective only if it is in

writing under the hand of a duly authorised representative of such Party or the

Independent Expert, as the case may be, in this behalf and not otherwise;

(r) the Schedules and Recitals to this Agreement form an integral part of this

Agreement and will be in full force and effect as though they were expressly

set out in the body of this Agreement;

(s) references to Recitals, Articles, Clauses, Sub-clauses or Schedules in this

Agreement shall, except where the context otherwise requires, mean references

to Recitals, Articles, Clauses, Sub-clauses and Schedules of or to this

Agreement, and references to a Paragraph shall, subject to any contrary

indication, be construed as a reference to a Paragraph of this Agreement or of

the Schedule in which such reference appears; and

(t) the damages payable by either Party to the other of them, as set forth in this

Agreement, whether on per diem basis or otherwise, are mutually agreed

genuine pre-estimated loss and damage likely to be suffered and incurred by

the Party entitled to receive the same and are not by way of penalty

(“Damages”). If, for any reason, any provisions regarding the payment of

Damages are held to be void, invalid or otherwise inoperative and so as to

disentitle either Party from claiming Damages, then such Party will be entitled

to claim against the other Party for general damages for the relevant default.


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1.2.2 Unless expressly provided otherwise in this Agreement, any document required to be

provided or furnished by the Service Provider to the Authority or the Independent

Expert shall be provided free of cost and in three copies, and if the Authority or the

Independent Expert is required to return any such document with their comments

and/or approval, they shall be entitled to retain two copies thereof.

1.2.3 The rule of construction, if any, that a contract should be interpreted against the parties

responsible for the drafting and preparation thereof, shall not apply.

1.2.4 Any word or expression used in this Agreement shall, unless otherwise defined or

construed in this Agreement, bear its ordinary English meaning and for these purposes,

the General Clauses Act, 1897 shall not apply.

1.3 Measurements and arithmetic conventions

All measurements and calculations shall be in the metric system and calculations done

to 2 (two) decimal places, with the third digit of 5 (five) or above being rounded up and

below 5 (five) being rounded down.

1.4 Priority of Clauses and Schedules

1.4.1 This Agreement, and all other agreements and documents forming part of or referred

to in this Agreement are to be taken as mutually explanatory and, unless otherwise

expressly provided elsewhere in this Agreement.

1.4.2 Subject to the provisions of Clause 1.4.1, in case of ambiguities or discrepancies within

this Agreement, the following shall apply:

(a) between two or more Clauses of this Agreement, the provisions of a specific

Clause relevant to the issue under consideration shall prevail over those in

other Clauses;

(b) between the Clauses of this Agreement and the Schedules, the Clauses shall

prevail and between Schedules and Annexes, the Schedules shall prevail;

(c) between any two Schedules, the Schedule relevant to the issue shall prevail;

and

(d) between any value written in numerals and that in words, the latter shall

prevail.


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ARTICLE 2

SCOPE OF THE PROJECT

2.1 Scope of the Project

The scope of the Project (the “Scope of the Project”) shall mean and include, during

the Term of this Agreement:

(a) the augmentation and development of the Healthcare Facilities at the Site that

has been described at Schedule A, to meet the minimum infrastructure,

equipment and Personnel requirements set forth in Schedule B;

(b) operation and maintenance of the Healthcare Facilities in accordance with the

provisions of this Agreement;

(c) making available the Healthcare Facilities for the Patients and providing at a

minimum the Healthcare Services to the Patients that are set out in Schedule

B, so as to achieve at a minimum the baseline requirements for the Key

Performance Indicators set forth in Schedule C; and

(d) performance and fulfilment of all other obligations of the Service Provider in

accordance with the provisions of this Agreement and matters incidental

thereto or necessary for the performance of any or all of the obligations of the

Service Provider under this Agreement.


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ARTICLE 3

GRANT OF RIGHTS

3.1 The Grant of Rights

3.1.1 Subject to and in accordance with the provisions of this Agreement, the Applicable

Laws and the Applicable Permits, the Authority hereby grants to the Service Provider

the exclusive right, licence and authority to augment, develop, operate and maintain

the Healthcare Facilities and to provide the Healthcare Services to the Patients at the

Healthcare Facilities during the Term in accordance with the terms of this Agreement.

3.1.2 Subject to and in accordance with the provisions of this Agreement, the rights hereby

granted for the Term shall oblige or entitle (as the case may be) the Service Provider

to:

(a) Licence to the Site for the purpose of and to the extent conferred by the

provisions of this Agreement;

(b) finance, develop, up-grade and equip the Healthcare Facilities;

(c) manage, operate and maintain the Healthcare Facilities and provide the

Healthcare Services;

(d) perform and fulfil all of the Service Provider’s obligations under and in

accordance with this Agreement; and

(e) bear and pay all costs, expenses and charges in connection with or incidental

to the performance of the obligations of the Service Provider under this

Agreement.

3.2 Conditions Precedent to the Appointed Date

3.2.1 Save and except as provided in Articles 1, 3, 6, 7, 8, 9, 19, 20, 22, 25 and 27 and related

Schedules or unless the context otherwise requires, the respective rights and obligations

of the Parties under this Agreement shall be subject to the satisfaction in full of the

conditions precedent specified in this Clause 3.2 (the “Conditions Precedent”), save

and except to the extent of waiver, if any, that the Authority may grant in accordance

with the provisions of Clauses 3.2.2.

3.2.2 The Service Provider shall, within 15 (fifteen) days from the date of this Agreement,

fulfil the following Conditions Precedent:

(a) extend the validity of the Bid Security and submit to the Authority the

Performance Security, in accordance with Article 8;

(b) incorporate the Change in Ownership provisions set out in Clause 4.6 into the

Service Provider’s [articles of association]/[constitutional documents];

(c) provide to the Authority certified true copies of the Service Provider’s

[memorandum and articles of association]/[constitutional documents];

(d) provide to the Authority a certified extract of [the board resolution of the

directors]/[the resolution of the governing body] of the Service Provider (or

equivalent) authorising the Service Provider to enter into this Agreement;


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(e) submit to the Authority the Legal Opinion; and

(f) if requested by the Authority, deliver to the Authority the Financial Model,

duly certified by [a Director]/[a Designated Partner] of the Service Provider.

Provided that upon request in writing by the Service Provider, the Authority may, in its

discretion, waive any of the Conditions Precedent set forth in this Clause 3.2.2 or grant

extension of time not exceeding 15 (fifteen) days for fulfilment thereof, as the case may

be. For the avoidance of doubt, the Authority may in its sole discretion grant any waiver

hereunder with such conditions as it may deem fit.

3.2.3 Conditions Precedent of the Authority

Subject to the Service Provider fulfilling all its Conditions Precedent as specified in

Clause 3.2.2 (other than any Condition Precedent that has been waived by the

Authority), the Authority shall, within a period of 45 (forty five) days from the date of

the notice from the Service Provider notifying fulfilment of its Conditions Precedent,

fulfil the following Conditions Precedent:

(a) procure functional water and electricity connections at the District Level

Facility and both the CHCs; and

(b) grant the Licence to the Site and the Existing Assets in relation to the District

Level Facility and the CHCs and hand over legal and constructive possession

to and provide access to the Site and Existing Assets in accordance with Article

9, with the exception of the staff quarters, possession of which shall be handed

over in accordance with Clause 9.2.2.

3.2.4 Appointed Date

The date on which the Authority fulfils its Conditions Precedent in accordance with

Clause 3.2.3 shall be the “Appointed Date”.

For the avoidance of doubt, the Authority may complete the handing over of the Site

and Existing Assets in a staggered manner, in which case the Appointed Date shall be

the date on which the handing over of all of the Site and the Existing Assets in relation

to the District Level Facility and both CHCs, with the exception of the staff quarters,

has been completed.

3.2.5 Damages for Delay by the Service Provider

In the event that: (i) the Service Provider does not procure fulfilment or waiver of any

or all of its Conditions Precedent set forth in Clause 3.2.2 within the period specified

in respect thereof; and (ii) the delay has not occurred due to Force Majeure, the Service

Provider shall pay to the Authority Damages calculated at the rate of Rs. 10,000

(Rupees ten thousand) for each day’s delay until the fulfilment or waiver of all

Conditions Precedent, subject to a maximum of Rs. 12,00,000 (Rupees twelve lakh).

3.2.6 Damages for delay by the Authority

In the event that: (i) the Authority does not procure fulfilment of its Conditions

Precedent set forth in Clause 3.2.3 within the period specified in respect thereof; and

(ii) the delay has not occurred as a result of breach of this Agreement by the Service

Provider or due to Force Majeure, the Authority shall pay to the Service Provider


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Damages calculated at the rate of Rs. 10,000 (Rupees ten thousand) for each day’s

delay commencing from the expiry of the period specified in Clause 3.2.3 until the

fulfilment of such Conditions Precedent, subject to a maximum of Rs. 12,00,000

(Rupees twelve lakh).

3.3 Termination upon delay

Without prejudice to the provisions of Clause 3.2, the Parties expressly agree that in

the event the Appointed Date does not occur, for any reason other than breach by the

Party seeking termination or Force Majeure, within 6 (six) months from the date of this

Agreement, then the Party who is entitled to have the Conditions Precedent set out in

Clause 3.2 satisfied shall be entitled to terminate this Agreement forthwith by issuing

a written notice to the other Party for that other Party’s failure. Upon such termination,

all rights, privileges, claims and entitlements of the Parties under or arising out of this

Agreement shall be deemed to have been waived by, and to have ceased with the

concurrence of the Parties.

Provided, however, that in the event the delay in occurrence of the Appointed Date is

for reasons attributable to the Service Provider, the Performance Security of the Service

Provider or the Bid Security of the [Selected Bidder]/[Consortium] shall be encashed

and appropriated by the Authority as Damages thereof in accordance with Clause 8.3.

3.4 Term

3.4.1 This Agreement shall be in full force and effect for a period commencing on the

Appointed Date and shall continue to be in effect, unless extended or terminated earlier

in accordance with the terms of this Agreement, until the expiration of 4 years

commencing from the COD (“Term”).

3.4.2 If the Authority is satisfied, on or before the expiration of 42 months from the COD,

that the Service Provider shall have discharged its obligations in compliance with the

Minimum Performance Benchmark for a period of 39 months from the COD, the Term

shall be extended by an additional term of 2 years on the terms and conditions set out

herein (other than the right of extension under this Clause 3.4.2). For the avoidance of

doubt, on such extension the Term shall include such extended period of 2 years.

For the purpose of this Clause 3.4.2, the Service Provider shall be deemed to have

complied with the “Minimum Performance Benchmarks” if: (i) it has achieved at a

minimum the baseline measures for the KPIs set out in Schedule C of this Agreement

for the 39 month period commencing from the COD; OR (ii) the cumulative deductions

from the Volume Adjusted Service Fee made by the Authority in the 39 month period

commencing from the COD, has not exceeded a sum equivalent to the value of the

Performance Security.


19

ARTICLE 4

GENERAL OBLIGATIONS OF THE SERVICE PROVIDER

4.1 Cost of Performance

Subject to and on the terms and conditions of this Agreement, the Service Provider

shall, at its own cost and expense, procure finance for and undertake the procurement,

augmentation, development, operation and maintenance of the Healthcare Facilities

and for the provision of the Healthcare Services and observe, fulfil, comply with and

perform all its obligations set out in this Agreement or arising hereunder.

4.2 Standards of Performance

The Service Provider shall augment, develop, operate, maintain and make available the

Healthcare Facilities and provide the Healthcare Services during the Term in

accordance with:

(a) all Applicable Laws and Applicable Permits (including renewals as required),

including, all environmental laws and regulations and the Environmental and

Social Management Plan relating to the handling and disposal of bio-medical

waste and hazardous waste; laws protecting the rights of persons with

disabilities; and any disaster management policy as may be notified and revised

by a Government Instrumentality from time to time;

(b) the provisions of this Agreement;

(c) the minimum infrastructure, Personnel and equipment requirements set out in

Schedule B and the applicable quality standards and the service performance

requirements set out in Schedule F, so as to achieve or exceed the baseline

measures for the KPIs set out in Schedule C;

(d) any conditions and operating and maintenance restrictions applicable to

warranties available in respect of the Existing Assets or the New Assets

procured and installed by the Service Provider;

(e) the Environmental and Social Management Plan published and approved by

the State Government for the Uttarakhand Health Systems Development

Project, as may be amended from time to time; and

(f) Good Industry Practice and as a reasonable and prudent person.

4.3 General Obligations of the Service Provider

The Service Provider shall, at its own cost and expense, in addition to and not in

derogation of its obligations elsewhere set out in this Agreement:

(a) make, or cause to be made, necessary applications to the relevant Government

Instrumentalities with such particulars and details as may be required for

obtaining Applicable Permits, and obtain and keep in force and effect such

Applicable Permits in conformity with the Applicable Laws and in a timely

manner;

(b) procure, as required, the appropriate Intellectual Property rights, licences,

agreements and permissions for materials, methods, processes, equipment,


20

systems and Intellectual Property used or incorporated into the Healthcare

Facilities or the provision of the Healthcare Services, for itself and for the

benefit of the Authority; provided that except for amounts included in the

Service Fee, no royalties, revenue share, license fee or other payment shall be

due or payable by the Authority to the Service Provider or any third party;

(c) unconditionally assign and grant all Intellectual Property rights in and to any

data, information, reports, specifications, designs, databases, computer

software (including any upgrades, plug-ins, customisations or any other

enhancements) and any other proprietary property or information that is

prepared by the Service Provider or otherwise incorporated in the Healthcare

Facilities in the course of or in connection with the performance of the

Healthcare Services by the Service Provider, in the Authority at no additional

cost to the Authority and immediately upon such Intellectual Property coming

into existence. The Service Provider acknowledges and confirms that such

assignment and vesting of the Intellectual Property rights shall entitle the

Authority to further assign or grant licenses in respect of such Intellectual

Property;

(d) ensure and procure that its Contractors comply with all Applicable Permits and

Applicable Laws in the performance by them of any of the Service Provider’s

obligations under this Agreement;

(e) procure, as necessary, infrastructure and utilities required for the operation and

maintenance of the Healthcare Facilities, including water, electricity and

sanitation, and pay all rates and charges in respect of such utilities consumed

by the Service Provider, its Personnel, agents, Contractors, Patients and

licensees at the Healthcare Facilities; and

(f) support, cooperate with and facilitate the Authority in the implementation and

operation of the Project in accordance with the provisions of this Agreement.

4.4 Personnel of Service Provider and its Contractors

4.4.1 The Service Provider shall engage a sufficient number of adequately skilled, competent

and experienced Personnel, for the purpose of the performance of its obligations under

this Agreement in compliance with all Applicable Laws and Applicable Permits and

the terms of this Agreement. Without prejudice to the foregoing, the Service Provider

shall, at a minimum, engage such number of skilled, competent and experienced

Personnel as is required to comply with the minimum Personnel requirements set out

in Schedule B.

4.4.2 The Service Provider shall ensure that those Personnel that it hires for providing the

Healthcare Services in the positions identified in Schedule B (the “Key Medical

Personnel”) shall:

(a) be qualified as Medical Practitioners in Uttarakhand or at least should have

applied for and received provisional certification from the Uttarakhand

Medical Council; and

(b) meet, at a minimum, the qualification and experience requirements specified

at Schedule B for the positions for which they are being hired.


21

The Service Provider shall notify the Authority of the appointment, substitution or

replacement of each of the Key Medical Personnel hired by it, along with the

qualification and experience of such Key Medical Personnel within 15 days of such

appointment, substitution or replacement.

4.4.3 In the event any of the Key Medical Personnel have acted negligently, recklessly or

without regard to the safety of the Patients, or have committed any Abuse or Fraud in

providing the Healthcare Services, or committed any Medical Malpractice or any other

serious misconduct or been charged with having committed a criminal action or if the

Authority has reasonable cause to be dissatisfied with the performance of any of the

Key Medical Personnel, the Authority shall have the right to require the services of

such Key Medical Personnel to be suspended or terminated by issuing a notice to the

Service Provider.

Within fifteen (15) days of receipt of a notice from the Authority, the Service Provider

shall suspend or terminate the employment of or repatriate such Key Medical Personnel

and replace such Key Medical Personnel with other person(s) having the requisite level

of skill, qualification and experience as specified in Clause 4.4.2. The Service Provider

shall have no claim for additional costs arising out of or incidental to any removal

and/or replacement of Key Medical Personnel.

Any period for which any position of the Key Medical Personnel remains vacant as a

result of a removal or suspension under this Clause 4.4.3 shall be counted for the

purpose of determining whether the Service Provider has complied with the baseline

requirements for the Availability KPIs set out in Schedule C.

4.4.4 The Service Provider shall have the freedom to rotate and roster its Personnel, including

the Key Medical Personnel, across all the Healthcare Facilities provided that the

Service Provider is able to achieve at a minimum the baseline measures for the

Availability KPIs that are set forth in Schedule C.

The Service Provider shall ensure that the Key Medical Personnel based at the District

Level Facility shall be available for outreach programmes and long-distance

consultations, including telephonically through the Personnel stationed in the MHVs

or at the CHCs.

4.4.5 The Service Provider shall comply with all applicable labour laws and shall ensure that

the Personnel receive wages and enjoy conditions of service in accordance with

Applicable Laws.

4.4.6 The Service Provider shall ensure that the Personnel engaged by it or its Contractors in

the performance of its obligations under this Agreement are at all times properly trained

for their respective functions.

4.4.7 The Service Provider shall make reasonable efforts to maintain harmony and good

relations among the Personnel employed by it or its Contractors in connection with the

performance of its obligations under this Agreement.

4.4.8 The failure of the Service Provider to comply with this Clause 4.4 or any failure to

perform or any misconduct by its Personnel shall not:

(a) affect or limit the Service Provider’s obligations or liabilities under this

Agreement, including its obligation to achieve or exceed the baseline measures

for the KPIs set out at Schedule C; or


22

(b) otherwise entitle the Service Provider to any additional payment or other form

of relief under this Agreement.

4.4.9 The Service Provider acknowledges, confirms and undertakes that:

(a) The Authority is not and shall not be the 'principal employer' of the Personnel

employed or otherwise hired by the Service Provider or its Contractors;

(b) The Service Provider shall be the 'principal employer' of the Personnel and

shall comply with all Applicable Laws (including but not limited to the

Contract Labour (Regulation and Abolition) Act, 1970 and rules issued

thereunder);

(c) Except as expressly stated in this Agreement, the Service Provider will exercise

direct control and supervision over the Personnel hired by it and its Contractors

and shall comply with all Applicable Laws (including but not limited to the

Contract Labour (Regulation and Abolition) Act, 1970 and rules issued

thereunder) in relation to the terms of employment and conditions of service

of the Personnel; and

(d) the Service Provider shall not represent or warrant to any of the Personnel that

the Personnel have any direct relationship with or have the ability to claim

direct employment with or absorption by the Authority, at any time during the

Term or on the Transfer Date and shall not induce any persons to enter into

employment with the Service Provider or its Contractors on the basis of such

representations or warranties.

4.4.10 Without limiting the Service Provider’s other obligations and liabilities under this

Agreement, the Service Provider shall be responsible for, and shall release and

indemnify the Authority, the State Government and related Government

Instrumentalities and their directors, employees and representatives from and against

all liabilities including losses, claims, expenses arising:

(a) as a result of a breach of this Clause 4.4 by the Service Provider; or

(b) from a claim by any of the Personnel against the Authority (including but not

limited to any claims by the Personnel that they should be deemed to be direct

employees of the Authority and should be absorbed by the Authority).

4.5 Obligations relating to Project Agreements

4.5.1 It is expressly agreed that the Service Provider shall, at all times, be responsible and

liable for all its obligations under this Agreement notwithstanding anything contained

in any Project Agreements or any other agreement, and no default by the Service

Provider or its Contractor under any Project Agreement or other agreement shall excuse

the Service Provider from its obligations or liability hereunder.

4.5.2 The Service Provider shall ensure that all the Project Agreements entered into provide

for assignment of the Service Provider’s rights under those Project Agreements in

favour of the Authority or the Authority’s nominee and contain an undertaking by the

Contractors that they shall execute all necessary deeds and documents to give effect to

such assignment, in a form substantially satisfactory to the Authority.


23

4.5.3 The Service Provider shall ensure that the warranties obtained by the Service Provider

from any Contractor under a Project Agreement are assignable in favour of the

Authority or the Authority’s nominee upon Termination.

4.5.4 The Service Provider shall be solely responsible for the payments to be made to the

Contractors in accordance with their respective Project Agreements. If the Service

Provider: (i) fails to make timely payments to any Contractor engaged by it; and (ii)

fails to satisfy the Authority that such failure to make timely payments to any

Contractor will not affect the continuity of the availability of the Healthcare Facilities

or the continuity of the Healthcare Services, the Authority may, at its sole discretion,

make direct payments to the Contractor and recover the amount paid from any payment

due to the Service Provider under this Agreement.

Provided however that, the Authority shall not at any time make or be required to make

any payments due from the Service Provider to the Personnel in accordance with

Applicable Laws.

4.5.5 The Service Provider shall procure that each Project Agreement shall contain

provisions that entitle the Authority or the Authority’s nominee to step into such Project

Agreement, in substitution of the Service Provider, if this Agreement is Terminated in

accordance with the terms hereof.

[4.6 Change in Ownership

4.6.1 The [Selected Bidder/the Consortium] has caused the Service Provider to be

incorporated as a special purpose vehicle that is a [private limited company/LLP], to

perform the obligations under this Agreement. The legal and beneficial ownership of

the Equity and voting rights of the Service Provider are held by the Selected Bidder/the

Members of the Consortium in the following proportion:

[Insert Equity and voting rights structure of the Service Provider]

4.6.2 [The Service Provider shall ensure that the Selected Bidder:

(a) retains Control over the Service Provider; and

(b) at least 51% (fifty one percent) of the legal and beneficial ownership in Service

Provider’s Equity and voting rights,

from the date of this Agreement and at all times during the Term.]

OR

[The Service Provider shall ensure that:

(a) All Consortium Members shall, acting together, retain Control over the Service Provider;

(b) All Consortium Members shall, acting together, hold at least 51% (fifty one percent) of the legal and beneficial ownership of the Service Provider’s Equity

and voting rights; and

(c) Each of the following Consortium Members: [insert names of Consortium Members whose Technical Capacity and Financial Capacity has been relied


24

on] shall hold at least 26% (twenty six percent) of the legal and beneficial

ownership of the Service Provider’s Equity and voting rights,

from the date of this Agreement and at all times during the Term.]

[Note: The first option shall be chosen if the Selected Bidder is a single entity and it

has decided to incorporate an SPV. The second option shall be chosen if the Selected

Bidder is a Consortium. This clause should be omitted if the Selected Bidder is a single

entity and chooses not to incorporate a SPV.]

4.6.3 Without prejudice to Clause 4.6.2, any:

(a) transfer of Equity and/or voting rights of the Service Provider; or

(b) change of Control over the Service Provider; or

(c) assignment, transfer, pledge, charge, mortgage or creation of any Encumbrance

over the Equity of the Service Provider, including by way of re-structuring or

amalgamation,

shall require the prior approval of the Authority, provided that the Authority shall not

withhold its approval if such change in the legal or beneficial ownership of the Equity

or voting rights of the Service Provider will not result in a breach of Clause 4.6.2.

If such change in the legal or beneficial ownership of the Equity or voting rights of the

Service Provider results in a breach of Clause 4.6.2, such breach shall be deemed a

Service Provider Default.]

[Note: This Clause 4.6 shall be “omitted”, if the Selected Bidder is also the Service Provider

and no SPV has been incorporated.]

4.7 Branding of Healthcare Facilities

4.7.1 The Healthcare Facilities or any part thereof shall not be branded in any manner to

advertise, display or reflect the name of the Service Provider [or the Selected

Bidder/any Member of the Consortium]. Provided that the Service Provider may within

the Healthcare Facilities display or advertise itself as being the entity undertaking

operation and management of the Healthcare Facilities on behalf of the Authority.

Notwithstanding the foregoing restriction, the Service Provider shall be solely

responsible for quality of Healthcare Services provided at the Healthcare Facilities.

4.7.2 The Authority shall provide the Service Provider with the branding to be used in respect

of the Healthcare Facilities within 30 (thirty) days of the Appointed Date. The Parties

agree that the Healthcare Facilities shall be known, promoted, displayed and advertised

only with the branding provided by the Authority.

4.8 Website

The Service Provider shall, within 6 (six) months from the COD, commission, operate

and maintain a comprehensive website exclusively for the Healthcare Facilities. The

following information shall be provided on the website in respect of each Healthcare

Facility:

(a) names of all the Key Medical Personnel, with qualifications, experience and

contact information;


25

(b) Healthcare Services available with timings;

(c) procedure for seeking appointment and facility to book appointment online;

(d) facility for providing feedback, registering complaints and other grievance

redressal information;

(e) medical emergency contact numbers, including numbers for the MHVs and

ambulance services;

(f) Patient Charter;

(g) any camps or other health activities planned; and

(h) general information for Patients such as details of referral arrangement with

any other hospitals.

4.9 Coordination of Healthcare Services with other Services

The Service Provider acknowledges that the GoUK, acting through the Authority and

through other Government Instrumentalities, has undertaken or is planning on further

strengthening the health system in the State of Uttarakhand by itself or through public

private partnerships, including: telemedicine, central health line services, an ambulance

network, the Health Insurance Scheme and other programmes.

The Service Provider shall ensure that the provision of the Healthcare Services are

coordinated with other health care services or related services, including those specified

above, that are being provided or that will be provided in the State of Uttarakhand.

4.10 Prohibition of Conflicting Activities

4.10.1 During the Term, neither the Service Provider nor its Personnel shall engage, either

directly or indirectly, in any business or professional activities within the district

boundaries of Tehri-Garhwal district which would conflict with the rights and

obligations assigned to them under this Agreement.

Provided however that the Service Provider shall be permitted to engage private doctors

or consultants with existing medical practices within the boundaries of Tehri-Garhwal

district on a temporary basis to substitute for the Key Medical Personnel during their

absence or non-availability. Provided further that no Key Medical Personnel shall be

substituted by such private doctors or consultants for more than 15 (fifteen) days in

each quarter of a year.

4.10.2 During the Term, neither the Service Provider nor its Contractors shall:

(a) use or otherwise undertake any revenue earning activities at the Healthcare

Facilities, other than in accordance with this Agreement; or

(b) hire serving employees of the Authority, the State Government or other

Government Instrumentalities, whether in active duty or on any other type of

leave, to perform any obligation of the Service Provider under this Agreement.

Without prejudice to the foregoing, the Authority agrees that the Service Provider or

its Contractors may provide Healthcare Services that are in addition to the minimum

Healthcare Services specified in Schedule B; provided that (i) the User Charges for


26

such service shall be determined and collected in accordance with Clause 13.22; and

(ii) the Service Provider shall not be entitled to receive any fee, commission or other

revenue from the Authority or the Patient, other than the monthly Service Fee

determined in accordance with Clause 15.1 or the Health Insurance Incentive

determined in accordance with Clause 15.2.


27

ARTICLE 5

OBLIGATIONS OF THE AUTHORITY

5.1 Obligations of the Authority

5.1.1 The Authority shall, at its own cost and expense undertake, comply with and perform

all its obligations set out in this Agreement or arising hereunder.

5.1.2 The Authority agrees to provide support to the Service Provider and undertakes to

observe, comply with and perform, subject to and in accordance with the provisions of

this Agreement and the Applicable Laws, the following:

(a) upon written request from the Service Provider, and subject to the Service

Provider complying with Applicable Laws, provide reasonable support and

assistance to the Service Provider in procuring Applicable Permits required

from any Government Instrumentality for implementation and operation of the

Healthcare Facilities or for the provision of the Healthcare Services, including

assistance in procuring registration or provisional registration of the Personnel

appointed by the Service Provider with the relevant regulatory bodies in the

State of Uttarakhand;

(b) transfer such Applicable Permits to the Service Provider which are available

with the Authority and are permitted to be transferred under Applicable Laws;

(c) upon written request from the Service Provider, and subject to the Service

Provider preparing the necessary application, procure such Applicable Permits

which are required to be obtained in the name of the Authority;

(d) upon written request from the Service Provider, provide reasonable assistance

to the Service Provider in procuring all necessary infrastructure facilities and

utilities, including any modification to the capacity of water and electricity

connections;

(e) appoint the following persons to be the Authority’s representatives at each

Healthcare Facility: the Chief Medical Officer at the district level for the

District Level Facility; and the Block Medical Officer at the block level for

each CHC and MHV attached to such CHC (each an “Authority

Representative”). In addition, the Authority may appoint another government

employee to assist the Authority Representative in fulfilling its duties and

responsibilities under this Agreement.

The Authority Representative shall be the liaison between the Authority and

the Service Provider in respect of the Healthcare Facility(ies) for which it is

appointed. The Authority Representative shall in addition, be responsible for

performing the following duties and responsibilities:

(i) performing public health functions;

(ii) supervising the Service Provider’s activities in relation to medico-legal

cases, including Healthcare Services that are provided at the

Healthcare Facilities and compliance with procedures specified in the

relevant guidelines issued by the State Government;


28

(iii) administering the Health Programmes and the Health Insurance

Scheme and undertaking such other duties and responsibilities set out

in this Agreement;

(iv) supervising the collection of the User Charges from Patients; and

(v) assist the Authority in the monitoring of the performance of the

Service Provider’s obligations in respect of the Healthcare Facilities

for which the Authority Representative is appointed.

(f) support, cooperate with and facilitate the Service Provider in the

implementation and operation of the Project in accordance with the provisions

of this Agreement; and

(g) make all payments that are due and payable to the Service Provider, in the

manner and within the time period specified in this Agreement and subject to

the terms of this Agreement.


29

ARTICLE 6

REPRESENTATIONS AND WARRANTIES

6.1 Representations and warranties of the Service Provider

The Service Provider makes the following representations and warranties to the

Authority, each of which the Service Provider further covenants, warrants and

represents shall remain true and correct for the duration of the Term:

(a) it is duly organised and validly existing under the laws of India, and has full

power and authority to execute and perform its obligations under this

Agreement and to carry out the transactions contemplated hereby;

(b) it has taken all necessary corporate and other actions under Applicable Laws

(including obtaining all necessary Applicable Permits) to authorise the

execution and delivery of this Agreement and to validly exercise its rights and

perform its obligations under this Agreement;

(c) it [and the Selected Bidder/Members of the Consortium] [has/have] the

financial standing and capacity to undertake the Project in accordance with the

terms of this Agreement;

(d) this Agreement creates legal, valid and binding obligations of and are

enforceable against the Service Provider [and the Selected Bidder/Member of

the Consortium] in accordance with the terms hereof;

(e) the Service Provider [and the Selected Bidder/each Member of the

Consortium] is subject to the laws of India, and hereby expressly and

irrevocably waives any immunity to which it may be or it may become entitled

to in any jurisdiction in respect of this Agreement or matters arising thereunder

including any obligation, liability or responsibility hereunder, including

immunity from jurisdiction, enforcement, execution, proceedings, injunctions

and all other legal proceedings and relief, both in respect of itself and its assets

and consents to such proceedings and relief;

(f) all the information (financial or otherwise), facts or documents or statements

furnished in the Bid , whether relating to the Selected Bidder/any Member of

the Consortium and as updated on or before the date of this Agreement are true

and accurate in all respects;

(g) the execution, delivery and performance of this Agreement will not conflict

with, result in the breach of, constitute a default under, or accelerate

performance required by any of the terms of its [memorandum of association,

articles of association]/[constitutional documents] or any Applicable Laws or

any covenant, contract, agreement, arrangement, understanding, decree or

order to which it is a party or by which it or any of its properties or assets is

bound or affected;

(h) there are no actions, suits, proceedings, or investigations pending or, to its

knowledge, threatened against it at law or in equity before any court or before

any other judicial, quasi-judicial or other authority, the outcome of which may

result in the breach of this Agreement or which would adversely affect the

performance of or its capacity or ability to perform any of its obligations under

this Agreement;


30

(i) it has no knowledge of any violation or default with respect to any order, writ,

injunction or decree of any court or any legally binding order of any

Government Instrumentality which may result in any Material Adverse Effect

on its ability to perform its obligations under this Agreement and no fact or

circumstance exists which may give rise to such proceedings that would

adversely affect the performance of or its capacity or ability to perform any its

obligations under this Agreement;

(j) it has complied with and will continue to comply with all Applicable Laws in

all material respects and is not subject to any fines, penalties, injunctive relief

or any other civil or criminal liabilities which in the aggregate have or may

have a Material Adverse Effect on the performance of or its ability or capacity

to perform its obligations under this Agreement;

(k) the Service Provider has satisfied itself and has made itself aware of the extent

and nature of the Healthcare Services required to be performed by it under this

Agreement, including the personnel, materials and equipment, drugs,

consumables and other facilities required for making available the Healthcare

Facilities and the provision of the Healthcare Services and is satisfied that the

amounts to which it is entitled to be paid under this Agreement are sufficient

to allow it to perform all of its obligations under this Agreement;

(l) The Service Provider [and the Selected Bidder/[the Lead Member and [insert

name of Member whose Technical Capacity is relied on]] have the requisite

skill, competence, qualifications and experience for the augmentation,

development, operation and maintenance of the Healthcare Facilities and the

provision of the Healthcare Services in compliance with the terms of this

Agreement; and the Service Provider shall have the benefit of [the Selected

Bidder’s]/[Members’] expertise, experience, capability and know-how for the

performance of its obligations under this Agreement;

(m) Neither the Service Provider [nor the Selected Bidder/any Member of the

Consortium] is subject to an Act of Insolvency;

(n) [As of the date of this Agreement, the legal and beneficial ownership of the

Equity and voting rights of the Service Provider is as stated at Clause 4.6.1;]

[Note: To be deleted if the Selected Bidder itself is the Service Provider.]

(o) [As at the Appointed Date and any time thereafter during the Term, the legal

and beneficial ownership of the Equity and voting rights of the Service

Provider shall comply with Clause 4.6.1 and the Service Provider shall not

permit a Change in Ownership in breach of Clause 4.6.2;] [Note: To be deleted

if the Selected Bidder itself is the Service Provider.]

(p) all its rights and interests in the Healthcare Facilities shall pass to and vest in

the Authority on the Transfer Date free and clear of all liens, claims and

Encumbrances, without any further act or deed on its part or that of the

Authority, and that none of the Project Assets shall be acquired by it, subject

to any agreement under which a security interest or other lien or Encumbrance

is retained by any person, save and except as expressly provided in this

Agreement;

(q) neither the Service Provider [nor the Selected Bidder/any Member of the

Consortium] has or will commit any Prohibited Act in relation to the award of

this Agreement or any of the subcontracts; and


31

(r) no representation or warranty made by it whether contained in this Agreement

or in any other document furnished by it to the Authority or to any Government

Instrumentality in relation to Applicable Permits contains or will contain any

untrue or misleading statement of material fact or omits or will omit to state a

material fact necessary to make such representation or warranty not

misleading.

6.2 Representations and warranties of the Authority

The Authority makes the following representations and warranties to the Service

Provider, each of which the Authority further covenants, warrants and represents shall

remain true and correct for the duration of the Term:

(a) it is duly organised and validly existing under the laws of India, and has full

power and authority to execute, deliver and perform its obligations under this

Agreement and to carry out the transactions contemplated herein;

(b) it has taken all necessary corporate and other actions under Applicable Laws

(including obtaining all necessary Applicable Permits) to authorize the

execution and delivery of this Agreement and to validly exercise its rights and

perform its obligations under this Agreement;

(c) it has the financial standing and capacity to perform its obligations under this

Agreement;

(d) this Agreement creates legal, valid and binding obligations of and are

enforceable against the Authority in accordance with the terms hereof;

(e) it has no knowledge of any violation or default with respect to any order, writ,

injunction or any decree of any court or any legally binding order of any

Government Instrumentality which may result in any Material Adverse Effect

on the Authority’s ability to perform its obligations under this Agreement;

(f) it has complied with Applicable Laws and will continue to comply with all

Applicable Laws in all material respects;

(g) the Authority is not the subject of an Act of Insolvency; and

(h) the DHF&WS has good and valid title, right and interest to and in the Site and

the Existing Assets, and the Authority has the power and authority to grant the

Licence in respect of the Site and the Existing Assets to the Service Provider

under this Agreement.

6.3 Disclosure

In the event that any occurrence or circumstance comes to the attention of either Party

that renders any of its aforesaid representations or warranties untrue or incorrect, such

Party shall immediately notify the other Party of the same. Such notification shall not

have the effect of remedying any breach of the representation or warranty that has been

found to be untrue or incorrect nor shall it adversely affect or waive any right, remedy

or obligation of either Party under this Agreement.


32

ARTICLE 7

DISCLAIMER

7.1 Disclaimer

7.1.1 The Service Provider acknowledges that prior to the execution of this Agreement, [the

Selected Bidder/the Consortium] has, after a complete and careful examination, made

an independent evaluation of the Request for Proposals, this Agreement, the Scope of

the Project, the Site (including soil and environmental conditions at the Site), the

condition of the Existing Assets and existing structures, local conditions, physical

qualities of ground, subsoil and geology, availability of power, water and other utilities,

availability of human resources, Applicable Laws and Applicable Permits and all

information provided by the Authority or obtained procured or gathered otherwise and

has made its own assessment as to all relevant factors for quoting the Base Service Fee

for the first year in its Bid, including the cost of making available the Healthcare

Facilities and providing the Healthcare Services in accordance with the terms and

conditions of this Agreement, case mix, case load, volume of Patients, bed occupancy,

average length of stay and other performance or productivity parameters. The Service

Provider is deemed to have knowledge of and to be satisfied with all such findings,

information and assessments.

7.1.2 The Selected Bidder/the Consortium and consequently, the Service Provider have

determined to their satisfaction the accuracy or otherwise thereof and the nature and

extent of difficulties, risks and hazards that are likely to arise or that may be faced by

the Service Provider in the course of performance of its obligations hereunder.

Without prejudice to the foregoing, the Service Provider acknowledges and confirms

that any failure of the Selected Bidder/the Consortium or its own failure to: (a) acquaint

itself with the Site or such information; or (b) its failure to make a reasonable

assessment as to the costs, Patient volumes or other matters specified in Clause 7.1.1;

or (c) identify any defect or deficiency in the design, construction, installation or

maintenance of the Site or the Existing Assets, shall not relieve the Service Provider

from its responsibility for properly estimating the difficulty or cost of successfully

performing its obligations and providing the Healthcare Services under the Agreement.

The Service Provider shall keep harmless and indemnify the Authority against all

losses, liabilities, damages, costs, expenses, actions, claims, proceedings incurred by

or made against the Authority as a result of any adverse conditions or defects or

environmental damage at or affecting the Site or the Existing Assets (whether pre-

existing or caused by or arising from the use of the Healthcare Facilities). Such

indemnity shall cover all consequential, indirect or extraordinary damages.

7.1.3 The Authority makes no representation whatsoever, express, implicit or otherwise,

regarding the accuracy, adequacy, correctness, reliability and/or completeness of any

statement or information provided by it or any assessment or assumption made by the

Selected Bidder/the Consortium and the Service Provider and the Service Provider

confirms that it shall have no claim whatsoever against the Authority in this regard.

7.1.4 The Service Provider acknowledges and hereby accepts the risk of inadequacy, mistake

or error in or relating to any of the matters set forth in Clause 7.1.1 and Clause 7.1.2

above and hereby acknowledges and agrees that the Authority shall not be liable or

responsible to the Service Provider, the Selected Bidder/any Member of the

Consortium or any of their Affiliates or any person claiming through or under any of


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them for the same in any manner whatsoever, whether in contract, tort, for breach of

statutory duty or otherwise arising.

7.1.6 The Parties agree that any mistake or error in or relating to any of the matters set forth

in Clause 7.1.1 or Clause 7.1.2 above shall not vitiate this Agreement, or render it

voidable.

7.1.7 Except as otherwise provided in this Agreement, all risks relating to the Project shall

be borne by the Service Provider and the Authority shall not be liable in any manner

for such risks or the consequences thereof.


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ARTICLE 8

PERFORMANCE SECURITY

8.1 Submission of Performance Security

8.1.1 The Service Provider shall submit to the Authority on or before the date of execution

of this Agreement, an irrevocable, unconditional and on-demand bank guarantee from

a Scheduled Bank for a sum of Rs. 2.5 crore (Rupees two crore and fifty lakh only) that

is payable or confirmed for payment in Dehradun, in the form set forth in Schedule D

(the “Performance Security”), to secure the due performance of the Service Provider’s

obligations and the discharge of the Service Provider’s liabilities under this Agreement,

whether during or after the Term.

8.1.2 Until such time that the Performance Security is submitted by the Service Provider ,

the Service Provider shall ensure that the Bid Security submitted by [it]/[the Selected

Bidder/the Consortium] shall remain in full force and effect.

If the validity of the Bid Security is scheduled to expire prior to submission of

Performance Security and the validity of the Bid Security is not extended or if the Bid

Security is not replaced by the Service Provider [or the Selected Bidder/the

Consortium] at least 15 (fifteen) days prior to such scheduled expiry date, the Authority

shall be entitled to forfeit and appropriate the total amount of the Bid Security as

Damages and terminate the Agreement in accordance with Clause 3.3.

Upon submission of the Performance Security in accordance with Clause 8.1.1, the

Authority shall release the Bid Security to the Service Provider [or to the Selected

Bidder/the Consortium].

8.1.3 Notwithstanding anything to the contrary contained in this Agreement, if the

Performance Security is not submitted by the Service Provider within a period of 15

(fifteen) days from the date of this Agreement, the Authority may encash the Bid

Security and appropriate the proceeds thereof as Damages, and thereupon all rights,

privileges, claims and entitlements of the Service Provider under or arising out of this

Agreement shall be deemed to have been waived by and to have ceased with the

concurrence of the Service Provider. Further, the Authority shall be entitled to

terminate this Agreement in accordance with Clause 3.3.

8.2 Validity of Performance Security

8.2.1 The Performance Security shall remain in full force and effect from the date of its

issuance until the expiration of sixty (60) Business Days following the Transfer Date.

8.2.2 If the Performance Security is scheduled to expire prior to the period specified in

Clause 8.2.1, then, no less than sixty (60) Business Days prior to the scheduled expiry

of the Performance Security, the Service Provider shall arrange for an extension or

replacement of the Performance Security meeting the requirements of this Agreement.

If the Service Provider fails to extend or replace the Performance Security within the

specified time period, the Authority shall be entitled to encash and appropriate the full

value of the Performance Security as Damages and to terminate this Agreement in

accordance with Article 20.


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8.3 Appropriation of Performance Security

8.3.1 Upon occurrence of a Service Provider Default or failure by the Service Provider to

pay any amount due or to discharge any liability to the Authority in accordance with

this Agreement, the Authority shall, without prejudice to its other rights and remedies

hereunder or in law, be entitled to encash and appropriate the relevant amounts from

the Performance Security as Damages.

8.3.2 Upon such encashment and appropriation from the Performance Security, the Service

Provider shall, within 30 (thirty) days thereof, replenish, in case of partial

appropriation, to its original level of the Performance Security, and in case of

appropriation of the entire Performance Security provide a fresh Performance Security,

as the case may be, and the Service Provider shall, within the time so granted, replenish

or furnish fresh Performance Security as aforesaid failing which the Authority shall be

entitled to terminate this Agreement in accordance with Article 20. Provided that upon

failure of the Service Provider to replenish the Performance Security in case of partial

appropriation, the Authority shall also be entitled to encash and appropriate the

remaining value of the Performance Security.

8.3.3 Upon replenishment of the Performance Security, whether by renewal or replacement,

the Service Provider shall be entitled to an additional Cure Period of 30 (thirty) days

for remedying the Service Provider Default or other failure that resulted in the

encashment and appropriation of the Performance Security. If the Service Provider fails

to cure the Service Provider Default or other failure within such 30 day period, the

Authority shall be entitled to encash and appropriate the full value of the Performance

Security as Damages, and to terminate this Agreement in accordance with Article 20.


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ARTICLE 9

LICENSE RIGHTS

9.1 License

9.1.1 In consideration of the Service Provider’s covenants and warranties set out in this

Agreement, the Authority hereby grants to the Service Provider an exclusive License

in respect of the Site for the District Level Facility and the CHCs (which is described,

delineated and shown in Schedule A hereto) and the Existing Assets (that will be listed

in the Asset Register) free of any Encumbrances, for the sole purpose of augmenting,

developing, operating and maintaining the District Level Facility and CHCs and

providing the Healthcare Services at the Healthcare Facilities in accordance with the

terms of this Agreement for the duration of the Term (as may be extended), and for no

other purpose whatsoever.

The Service Provider accepts the Site and the Existing Assets on an “as is, where is”

basis and accepts that the Authority makes no warranty or guarantee as to the

suitability, fitness for purpose or condition of the Site and the Existing Assets.

9.1.2 The Service Provider expressly agrees that the Licence granted to it shall terminate

automatically and forthwith, without the need for any action to be taken by the

Authority to terminate the Licence, upon the expiration or Termination of this

Agreement for any reason whatsoever. For the avoidance of doubt, the Parties expressly

agree that notwithstanding any temporary or permanent structures erected on the Site

or the installation of any New Assets at the Site by the Service Provider or its sub-

licensees, the Licence in respect of the Site and the Existing Assets shall automatically

terminate, without any further act of the Parties, upon the expiration or Termination of

this Agreement.

9.1.3 The Service Provider hereby irrevocably appoints the Authority (or its nominee) to be

its true and lawful attorney, to execute and sign in the name of the Service Provider a

transfer or surrender of the License granted hereunder at any time after the Term has

expired or has been terminated earlier in terms hereof, a sufficient proof of which will

be the declaration of any duly authorised officer of the Authority, and the Service

Provider consents to it being registered for this purpose.

9.2 Possession of the Site and Existing Assets

9.2.1 The Authority Representative and the Service Provider shall, on a mutually agreed date

and time and in any event on or before 45 (forty five) days from the date of satisfaction

of the Conditions Precedent by the Service Provider (unless waived by the Authority

in accordance with Clause 3.2.2), inspect the Site and the Existing Assets in respect of

each Healthcare Facility and prepare the Asset Register for such Healthcare Facility

containing a detailed inventory of the Site, the land, buildings (including staff quarters),

structures, road works, trees, any other immovable property on or attached to the Site,

all other assets, equipment, machinery, materials, spare parts, consumables and any

other moveable property located at or installed at the Site.

9.2.2 The Authority Representative shall, acting on behalf of the Authority, hand over

vacant, peaceful and exclusive possession of the Site and the Existing Assets in respect

of the Healthcare Facility to the Service Provider, free of any Encumbrances, after the

inspection mentioned in Clause 9.2.1 above is completed.


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Provided however that, the Authority shall not be required to hand over vacant,

peaceful and exclusive possession of the staff quarters simultaneously with the handing

over of the rest of the Site and Existing Assets. The Authority agrees that it shall hand

over vacant, peaceful and exclusi

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